Legal Docket: Chilling subpoenas and combat claims

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MARY REICHARD, HOST: It’s The World and Everything in It for this 8th day of December, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket, and we’ll cover two disputes pending before the U.S. Supreme Court.

We begin with First Choice Women’s Resource Centers v Platkin argued last week. It asks a simple question: Can government officials force nonprofits to reveal their donors to the state? The case is about the right to keep private information private, the right of association, and the right not to speak.

REICHARD: The case arises from New Jersey and revolves around donors who financially support crisis pregnancy centers.

First Choice is a pro-life nonprofit serving women in crisis at five locations across New Jersey. Aimee Huber is the executive director. When she spoke with me in August, she said she was blindsided two years ago by a subpoena from the New Jersey attorney general’s office:

HUBER: It commanded us to produce up to 10 years of documentation on our donor communications, identities of our donors and advertising, and basically everything you could think of. Just the thought of producing that much information for up to ten years is completely overwhelming and daunting. So every hour that we would be using to produce documentation would be an hour that would be taken away from serving our women.

EICHER: State Attorney General Matt Platkin opened the investigation into First Choice, starting with its website. Yes, it had true information about abortion—but Platkin argued it could mislead donors into believing it was not a pro-life organization.

But First Choice says its position is clear and on every page of its website. It says the state is on a fishing expedition and should be stopped.

Legal correspondent Jeff Palomino takes it from here.

JEFF PALOMINO:Not everyone can sue in federal court. A party must have standing to sue in federal court. That means showing a direct personal injury caused by the defendant for which a federal court can provide a remedy.

And, that’s the issue in First Choice.

Lawyer Erin Hawley of Alliance Defending Freedom argued on behalf of the pregnancy center.

HAWLEY: The attorney general of New Jersey issued a sweeping subpoena commanding on pain of contempt that First Choice produce donor names, addresses, and phone numbers so his office could contact and question them. That violates the right of association. 01:13 First Choice's associational interests were harmed the moment it received a coercive subpoena demanding donor names on pain of contempt.

Hawley pointed to the chilling effect on donors:

HAWLEY: ... Some donors gave as little as $10. Those folks are going to be worried about a state attorney general…demanding their names, phone numbers, addresses, places of employment, so that he can contact them about a donor website.

She noted that First Choice faces a credible threat of the Attorney General enforcing the subpoena, regardless of whether a court orders compliance.

HAWLEY: The attorney general does not contest that there’s a credible threat of enforcement here….there are several injuries that flow simply from pre-enforcement review. One of those is the burden, the time and resources spent on litigation.

We think what First Choice needs to show is that a reasonably objective donor or nonprofit, as described as a person of ordinary firmness, would have been chilled by the coercive subpoena. We think that's clear here.

A lot of the argument centered on whether the subpoena was “self executing.” That means someone has to go to court to enforce it; it doesn’t happen on its own. The state argued the subpoena wasn’t self-executing, it just lays there unless a court enforces it. Therefore, any injury to First Choice is hypothetical, at least for now. Justice Neil Gorsuch asked Hawley about that:

GORSUCH: Just wanted to give you an opportunity to address the state's argument that it's not self-executing.

HAWLEY: ….The state says the subpoena is voluntary. That's not what the face of the subpoena says…. That's not what the state law says…. It says that if you fail to obey the subpoena, again, not a later court order, if you fail to obey the subpoena, you could be subject to contempt, you could lose your business license. Those are the death knell for nonprofits like First Choice.

On the other side, arguing for the attorney general, lawyer Sundeep Iyer. He said nobody’s First Amendment rights had been chilled:

IYER: Petitioner's factual allegations do not show that the issuance of this subpoena objectively chilled Petitioner's First Amendment rights. …The state court has repeatedly declined to order production over two years of litigation. That helps explain why Petitioner never alleged below that anyone actually has been or is objectively likely to be chilled by this subpoena. Instead, at most, the complaint alleges that the subpoena itself "may cause" donors to stop contributing.

Several justices pushed back. Listen to this exchange with Chief Justice John Roberts.

ROBERTS: So you don’t think it might have an effect on future potential donors to the organization to know that their name, phone number, address, et cetera, could be disclosed as a result of the subpoena?

Iyer countered there’s just no evidence of that “chilling” of speech. The Chief wasn’t having it:

ROBERTS: Well, how do you get that evidence? Somebody comes in and say, "I'm chilled, I don't want to reveal my name, address, phone number, et cetera, and here is my affidavit." That's not going to work, is it?

Justice Elena Kagan voiced the same concerns about the subpoena scaring people off donors.

KAGAN: An ordinary person, one of the funders for this organization or for any similar organization presented with this subpoena and then told but don't worry, it has to be stamped by a court, is not going to take that as very reassuring.

Justice Brett Kavanaugh pointed to the ACLU’s friend of the court brief in support of First Choice, not exactly an an organization that’s aligned with the pro-life cause. But it was on this issue:

KAVANAUGH: The broader common sense of the situation reflected in the ACLU's brief, reflected in some of the questions would seem to say, you know, this is just kind of obvious that there's some kind of objective chill from a subpoena on speech.

Both Justices Amy Coney Barrett and Clarence Thomas seemed to get the bigger context First Choice faced in a state like New Jersey. It’s one other pregnancy centers face - increasing animosity from some politicians. Justice Thomas got right to the point. Listen to this exchange with lawyer Iyer:

THOMAS: Did you have complaints that form the basis of your concern about the fundraising activities here?

IYER: We certainly had complaints about crisis pregnancy centers that Petitioner –

THOMAS: No, about this crisis pregnancy center.

IYER: So I think we've been clear from the outset that we haven't had complaints about this specific pregnancy center…

THOMAS: So you had no basis to think that they were deceiving any of their contributors?

I’m reading a pretty sound defeat for the attorney general and an opinion that continues to refine tests for First Amendment standing.

Now on to our second case, argued late last month.

MOSIER: This case arises out of an enemy attack on U.S. military forces on a foreign battlefield in time of war.

That’s Mark Mosier, lawyer for Fluor Corporation, a major government contractor.

Here are the facts. Winston Hencely is a former U.S. Army Specialist who was seriously injuried by a suicide bombing on Bagram Air Base in Afghanistan in 2016. The bomber was an Afghan employee who worked for Fluor, which was providing support services on the base. Hencely says Fluor didn’t properly supervise that employee. So he sued.

But Fluor’s lawyer says those claims cannot proceed:

MOSIER: Petitioner sued Fluor under South Carolina tort law for failing to prevent that act of war. Those state law claims are preempted because they conflict with uniquely federal interests. Petitioner's claims interfere with the federal government's exclusive war-making powers. The Constitution vests all war powers in the federal government and expressly withdraws from the states the power to engage in war. Applying tort law on a foreign battlefield would hinder the federal government's exercise of those powers.

Justice Kavanaugh was sympathetic. Bagram Air Base was a combat zone, and war fighting decisions fall under federal authority, period.

KAVANAUGH: And so Congress looking at this area, the idea that state tort law is going to regulate what goes on at Bagram, I think Congress would be, like, hmm, sounds way out there.

But other justices didn’t seem as convinced. Some pointed to precedent that may allow Hencely’s claims to proceed.

Others cited Department of Defense regulations that told contractors they could be liable in certain circumstances.

In the end, Justice Gorsuch summarized best what’s at stake.

GORSUCH: One might -- might think that it would help the military to immunize all contractors, and there's some good arguments for that. But there's another good argument on the other side, which is, well, maybe the military would benefit most from having efficient contractors who are less likely to cause harm to military members.

And I'm just suggesting to you there are really good arguments on both sides of this which would advance the war -- war-making function of the federal government, and I don't know.

Today, contractors work side-by-side with the U.S. military just as much as they did back in 2016 - and that’s especially true when troops deploy overseas. It’s hard to predict this ruling, but one thing is for sure - a lot is riding on the outcome.

And that’s this week’s Legal Docket!

I’m Jeff Palomino.

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